Saturday, 18 January 2014
Surgery medical negligence Cases in India.
Surgery medical negligence Cases in India.
.It is one thing to say that when two views are possible and when Doctor performing the surgery adopts one view, the same cannot be a basis for fixing the medical negligence, on the ground that he ought to have followed the other. However, in a case where an act was done by a Doctor which he is otherwise not supposed to do and such an act was done in a negligent manner resulting in a substantial injury to the patient, then he cannot escape the liability. When a Doctor who performs a surgery is in possession of certain facts and the factum of the surgery has not been disputed, coupled with the fact that, the complications have arisen in pursuant to the surgery not correctly done then the onus is on him to prove that
negligence is not on his part. When the accident is such that in the ordinary course of action it is not likely to happen if the person incharge has not taken proper care then, the consequential liability will be on him. The principle of res ipso loquitur has been considered at length by the Honourable Apex Court in V.KISHAN RAO vs. NIKHIL SUPER SPECIALITY HOSPITAL [(2010) 5 SCC 513], wherein it has been held as follows: "46. In Spring Meadows Hospital v. Harjol Ahluwalia [(1998) 4 SCC 39] this Court was dealing with the case of medical negligence and held that in cases of gross medical negligence the principle of res ipsa loquitur can be applied. In para 10, this Court gave certain illustrations on medical negligence where the principle of res ipsa loquitur can be applied.
Madras High Court
M/S.Soni Hospital vs Arun Balakrishnan Iyer
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
O.S.A. NO.391 OF 2003
3.Dr.Anju Soni .. Appellants
1.Arun Balakrishnan Iyer
2.Meena Balakrishnan .. Respondents
This Original Side Appeal has been filed under Order XXXVI Rule 1 of Original Side Rules read with Clause 15 of Letters Patent, against the judgment and decree dated 17.06.2003 in C.S.No.1345 of 1991.
For Appellants : Mr.N.Venkatraman
for M/s.Nageswaran and Narichania
For Respondents : Mr.R.Parthasarathy
* * * * *
J U D G M E N T
This Appeal has been preferred by the defendants in C.S.No.1345 of 1991, challenging the judgment and decree dated 17.06.2003, directing the payment for a sum of Rs.3,35,000/- payable by them as compensation with 6% interest per annum, from the date of the plaint to that of the actual payment.
2.For the sake of brevity, the parties as mentioned in the suit are referred in this appeal in the same manner.
The case of the plaintiffs/defendants are as follows:
3.The first plaintiff is the husband of the second plaintiff. The second plaintiff underwent an operation on 29.09.1989 in the first defendant Hospital for the removal of ovarian cyst. The operation was performed by the second defendant assisted by the third defendant who were the Doctors attached to the Hospital. During the process of the operation, the second defendant came out of the operation theatre and informed the first plaintiff that, the uterus of the second plaintiff will have to be removed immediately. The first plaintiff protested the said proposed decision by stating that the second defendant ought to have obtained the consent before doing so. However, he was informed by the second defendant that, it would be impossible to obtain the consent considering the fact that she was in anesthesia and the removal of uterus is very much necessary. Accordingly, having no other option, the first defendant left the decision to the discretion of the second defendant.
4.Thereafter, the operation was performed by removing the uterus and the second defendant informed the first plaintiff not to inform the second plaintiff about the said removal on the ground that it would give her a mental shock. Thereafter, she was discharged from the first defendant Hospital on 06.10.1989. Even after the discharge, the second plaintiff continued to be in the treatment and advice of the second defendant.
5.However, the second plaintiff suffered from severe stomach ache and developed dysentery, nausea and vomiting. The condition got deteriorated day-by-day inspite of the treatment given by the second defendant. The second plaintiff was referred to a general Physician for 'Colic Pain' and indigestion by the second defendant, since she felt it was a gynecological problem. The general Physician also could not improve the situation.
6.In view of the above position, the treatment was taken with one Dr.Galundiya at Jaipur. Since the condition did not improve the said Doctor referred the second plaintiff to Dr.S.S.Thambi. Dr.S.S.Thambi suspected 'intestinal obstruction' due to post-operative adhesions and advised immediate hospitalisation. He also advised that the second plaintiff will have to undergo another operation.
7.The first plaintiff consulted one Dr.Junejo at Jaipur and then the Government Ayurvedic College in Bhrampuri. Unfortunately, the condition of the second plaintiff did not improve. Hence, a decision was made by the first plaintiff to take the second plaintiff to Chennai. She was admitted to Rakhee Nursing Home and then shifted to City Tower Hospital at Chennai, since the foreign material in the body was covered with intestine and puss, the x-rays and scans taken did not indicate anything. The barium test x-ray revealed enlargement of intestine of the second plaintiff. Abscess cavity surrounded by the attachments of the intestine was found. A surgery was performed on 11.09.1990 by Dr.S.Varadarajan. To the shock and surprise, an abdominal pad measuring 12 inches x 12 inches was found lying inside the body in the junction of small and large intestine. The pad contained a label contained "Soni Hospital". Accordingly, it was removed. A report was given by Dr.S.Varadharajan on 16.09.1990. A legal notice was given by the second plaintiff to the defendants and there was no reply after the receipt of the same. Therefore, for performing the surgery in removing the uterus and for medical negligence by placing the abdominal pad causing severe pain affecting the health, resulting in the ultimate surgery and mental agony, the present appeal has been filed seeking a sum of Rs.15,00,000/- towards the compensation, which is inclusive of the amount spent against the defendants 1 to 3. The case of the defendants 1 to 3:
8.A written statement was filed by the defendants 1 to 3 stating that, it is true that a surgery was conducted on 29.09.1989 in the first defendant hospital by the second defendant. The third defendant was only assisted by the second defendant. The contention regarding the failure to remove the abdominal pad was totally denied. The second plaintiff during the discharge was normal and healthy except certain minor complaints. The second defendant did not make any complaint after the surgery. The statement that an abdominal pad was removed with the label reading "Soni Hospital" was also denied. A further contention has been raised stating that the suit as filed has to be dismissed for lack of territorial jurisdiction and the leave obtained without issuing notice cannot be sustained. For the surgery committed in Jaipur, a suit cannot be filed in Chennai, as there is no cause of action available to the plaintiffs to file the same. Therefore, it was prayed that the suit will have to be dismissed.
9.Before the learned single Judge, the plaintiffs examined 3 witnesses. P.W.1 is the first plaintiff. P.W.2 is the second plaintiff. P.W.3 is Dr.S.Varadharajan who performed the surgery on 11.09.1990 and removed the abdominal pad. On the side of the defendants, 2 witnesses have been examined in D-1 and D-2.
10.The learned single Judge framed the following issues for consideration, based upon the pleadings of the parties:
"1.Whether the defendants were negligent in the medical treatment accorded to the second plaintiff?
2.Whether the plaintiffs have jointly suffered a loss on account of the acts of negligence of the defendants?
3.Was there any consent from the plaintiffs for removing the uterus and ovaries from the second plaintiff?
4.Whether the first and third defendants are also liable for the suit claim?
5.Whether the plaintiffs are entitled to the damages in a sum of Rs.15,00,000/- as claimed by the plaintiffs?
6.Whether the plaintiffs are entitled for interest at the rate of 19.5% per annum from the date of plaint till realisation?
7.To what reliefs the plaintiffs are entitled to?
8.Whether this Hon'ble Court has jurisdiction to adjudicate the suit dispute?
9.Whether the plaintiffs have any valid sustainable cause of action against the defendants?
10.Is Dr.Varadharajan's report dated 16.09.1990, proof of presence of an abdominal pad with a label reading "Soni Hospital" inside the body of the second plaintiff?"
11.Thereafter, the learned single Judge reframed the issues as follows:
"(i)Whether this Court has no jurisdiction to try this case?
(ii)Whether the defendants are not liable to pay compensation for removing the uterus without obtaining consent of the second plaintiff?
(iii)Whether abdominal pad was not placed in the body of the second plaintiff and omitted to be removed during operation?
(iv)Whether the defendants were not negligent in the medical treatment given to the second plaintiff?
(v)Whether the plaintiffs are not entitled to Rs.15 lakhs towards damages from the defendants?
(vi)Whether the plaintiffs are not entitled for interest at the rate of 9% per annum?
(vii)To what other reliefs the plaintiffs are entitled?"
12.On a consideration of the pleadings, coupled with the evidence available on record, the learned single Judge granted a decree, for a sum of Rs.3,35,000/- with 6% interest fixing the negligence on the part of the defendants, for placing the abdominal pad after surgery into the body of the second plaintiff causing mental and physical hardship, apart from monetary loss.
13.The learned single Judge has also rejected the case of the plaintiffs regarding the failure on the part of the defendants to inform the second plaintiff on the decision made to remove the uterus. Challenging the judgment and decree of the learned single Judge, the defendants have filed this appeal. The Honourable Division Bench of this Court, in and by the order dated 08.07.2008, after holding that sufficient opportunities have not been given to the defendants to adduce the evidence and argue on the recast issues, was pleased to set aside the judgment and decree of the learned single Judge and remitted the matter for a fresh consideration. The order passed by the Honourable Division Bench dated 08.07.2008 was taken on appeal by the plaintiffs to the Honourable Apex Court in Civil Appeal No.7242 of 2010. An order was passed on 27.08.2010 which is extracted herein: "2.Learned counsel appearing for the parties agree that this matter should be remitted to the High Court for a decision afresh in accordance with law, having regard to the provisions of Order XL1 Rule 24 of the Code of Civil Procedure as also Order XL1 Rule 27 thereof so as to enable the High Court to pronounce the judgment once and for all.
3.In that view, we set-aside the impugned judgment passed by the High Court and remit the matter to the High Court to decide it afresh in view of the aforesaid observation.
4.This appeal stands disposed of accordingly."
14.Therefore, in pursuant to the said pronouncement of the Honourable Apex Court, the appeal is heard and the learned counsels have made submissions on both the original issues as well as the issues which have been recast by submitting that, there is no more evidence either oral or documentary available except the submissions.
15.Heard Mr.N.Venkatraman, learned counsel appearing for appellants as well as Mr.R.Parthasarathy, learned senior counsel appearing for respondents and perused the written submissions filed by the appellants.
16.The learned counsel for the appellants submitted that the suit as filed is not maintainable in law. Admittedly, the surgery was performed at Jaipur on 29.09.1989. Therefore, there is no cause of action available for the plaintiffs for filing the suit at Chennai. Section 19 of the Code of Civil Procedure specifically deals with jurisdiction of the Court to decide the filing and hearing of the suits. There is no averment in the plaint that the operation was conducted within the city of Chennai. No discharge has been produced by the plaintiffs to establish the fact that the second plaintiff was operated. The mere fact that a leave has been obtained by the plaintiffs, will not give the jurisdiction to the Court to decide the dispute.
17.Further contention of appellants is that there is absolutely no material to fix the liability on the defendants. The evidence of P.W.3 and the certificate given by him ought not to have been accepted. Case of appellants is that the learned single Judge committed an error in fixing the onus on the defendants to disprove the allegations made by the plaintiffs. The measurement of the abdominal pad as mentioned by the plaintiffs vary with that of the statement given by P.W.3. The abdominal pad in which the name of the first defendant Hospital was mentioned has not been produced. When the photographs were rejected by the learned single Judge, the suit ought to have been dismissed for want of proper evidence. The principle of res ipso loquitur does not arise in the present case, as there is no negligence on the part of the defendants as proved by the plaintiffs. In support of the said contention, the learned counsel has relied upon the following judgments: "T.M.SHANMUGHAM vs. PERIYAR SELF-RESPECT PROPAGANDA INSTITUTION [AIR 1985 MADRAS 93]
M/S.SREEPATHI HOSIERY MILLS (P) LTD. vs. M/S.CHITRA KNITTING CO. [AIR 1977 MADRAS 258]
M/S.INTEGRATED FINANCE COMPANY LIMITED vs. TMT (INDIA) LIMITED AND ANOTHER [2005-2-L.W.14]
M.NARSINGA RAO vs. STATE OF ANDHRA PRADESH
[2001 CRI. L.J.515]
SMT.VINITHA ASHOK vs. LAKSHMI HOSPITAL AND OTHERS [2002-4-L.W.1]
C.P.SREEKUMAR (DR.) vs. S.RAMANUJAM [II (2009) CPJ 48 (SC)]"
Hence the learned counsel submitted that the appeal will have to be allowed.
18.Per contra, Mr.R.Parthasarathy, learned senior counsel appearing for plaintiffs/respondents submitted that it has been specifically stated in the plaint that the plaintiffs came to Chennai and took treatment inclusive of the surgery. The cause of action for the suit is also inclusive of the date in which the second defendant had to undergo surgery for the second time due to the negligence committed on the part of the defendants.
19.Section 120 of the Code of Civil Procedure excludes Section 20 of the said code. The jurisdiction of the Court is determined by Clause 12 of the letters patent. The learned senior counsel would submit that leave has been obtained by the plaintiffs and the defendants have not filed any application to revoke the leave. They have also submitted to the jurisdiction of the Court. Therefore, it is not open to them to contend regarding the lack of jurisdiction.
20.The learned senior counsel further submitted that Ex.P-6 is the report given by P.W.3 who is an independent witness. According to respondents When a statement has been given by a Doctor who has got no axe to grind against the defendants regarding the factum of the discovery of an abdominal pad having the label of "Soni Hospital", much weight should be given to the same. Considering the rare operation performed by P.W.3, he was able to remember the surgery performed by him resulting in the removal of the abdominal pad from the body of the second plaintiff. Moreover, discrepancies in the evidence given by the parties are natural, due to the lapse of time. P.W.3 was a Doctor performing the surgery and therefore, he is not expected to produce the discharge summary. P.W.3 specifically states about the label reading "Soni Hospital" found within the body of the second plaintiff. It is not the case of the defendants that P.W.3 was inimically disposed of towards the defendants. Considering the mental agony and suffering caused to the plaintiffs, the compensation awarded by the learned single Judge does not call for any interference. Hence the learned senior counsel submitted that the appeal will have to be dismissed.
21.Indisputably, a surgery was performed on the second plaintiff by the second defendant at the first defendant Hospital. The second defendant was assisted by the third defendant. It is also not in dispute that subsequent to the first surgery conducted by the defendants, the second plaintiff was made to undergo another surgery. It is the specific case of the plaintiffs that, the subsequent surgery was necessitated in view of the submissions developed by the second defendant and it was duly performed at City Tower Hospital, Chennai. The surgery was done by P.W.3, Dr.S.Varadharajan, the suit has been filed showing the cause of action on 11.09.1990, the date on which the second plaintiff had to undergo the second surgery. Therefore, inasmuch as it has been specifically averred in the plaint and in submissions made by P.Ws.1 to 3 that the second surgery was performed at Chennai on the second plaintiff by P.W.3, we have no hesitation in holding that, the suit is maintainable before this Court. It is only when the second surgery was performed, the real cause for the agony of the second plaintiff came to light. Therefore, but for the surgery it would not have been possible for the plaintiffs to realise that the problem arose because of the medical negligence caused by the defendants. It is further to be noted that, the plaintiffs obtained leave of this Court before the learned single Judge for filing the suit and the said leave duly obtained was not even sought to be revoked by the defendants. The defendants submitted to the jurisdiction of this Court by participating in the trial and the hearing of the suit. Therefore, in view of the above said facts, it does not lie in the mouth of the defendants to contend that this Court does not have jurisdiction to try the suit. Hence, we hold that the suit as filed by the plaintiffs is maintainable.
22.P.W.3 clearly speaks about the factum of the second surgery. As seen from the evidence of D.W.1, the second plaintiff did not have any enmity or ill intention towards the defendants. It is also not the case of the defendants that P.W.3 was against them. The evidence was given by P.W.3 in the year 2002 which is nearly more than 12 years after the operation. However, he was able to recollect the surgery considering its uniqueness. He has specifically stated that, he found a small abscess cavity in the abdominal pad while operating. He also found a mass liaison in the terminal ileum. While he was removing the mass he found an abdominal pad. The said pad was removed by him along with the intestine. The said factum of removal of pad was also informed to the relatives of the patient. The pad removed had on it, inscripted the words "Soni Hospital". Therefore, the evidence of P.W.6 is very clear that he did find an abdominal pad while performing the operation having the label "Soni Hospital". There is absolutely no reason for P.W.3 being a respectable Doctor to implicate the defendants. The mere fact that the said pad was not marked as exhibits and the discharge summary was not also produced before the Court cannot be a ground to hold that the statement of P.W.3 is not correct. P.W.3 also explains that Ex.P.6 which is the certificate given by him about the above said facts. No doubt, the learned single Judge rejected the photographs produced on the ground that they cannot be made admissible in evidence in the absence of negatives. However, the said finding cannot be a factor to reject the evidence of P.W.3, who has stated in clear terms about the facts.
23.The contention of the learned counsel for the appellants that a foreign material must have been inserted by the second plaintiff herself in view of the treatment underwent by her in Ayurvedic Hospital cannot be countenanced. What was used for the Ayurvedic treatment was a mere a piece of cloth, whereas the evidence of P.W.3, coupled with Ex.P-6 exemplify the fact that, what was found inside the body of the second plaintiff, was an abdominal pad which is used for surgery having the distinct label "Soni Hospital". It is also to be seen that it is evidence of P.Ws.1 and 2 that pain has developed after the surgery and has not subsided thereafter. Therefore, the submissions made by the learned counsel for the appellant to the effect that the foreign material must have been inserted inadvertently by the second plaintiff has no factual basis.
Applicability of the doctrine of raise res ipso loquitur:
24.It is one thing to say that when two views are possible and when Doctor performing the surgery adopts one view, the same cannot be a basis for fixing the medical negligence, on the ground that he ought to have followed the other. However, in a case where an act was done by a Doctor which he is otherwise not supposed to do and such an act was done in a negligent manner resulting in a substantial injury to the patient, then he cannot escape the liability. When a Doctor who performs a surgery is in possession of certain facts and the factum of the surgery has not been disputed, coupled with the fact that, the complications have arisen in pursuant to the surgery not correctly done then the onus is on him to prove that the negligence is not on his part. When the accident is such that in the ordinary course of action it is not likely to happen if the person incharge has not taken proper care then, the consequential liability will be on him. The principle of res ipso loquitur has been considered at length by the Honourable Apex Court in V.KISHAN RAO vs. NIKHIL SUPER SPECIALITY HOSPITAL [(2010) 5 SCC 513], wherein it has been held as follows: "46. In Spring Meadows Hospital v. Harjol Ahluwalia [(1998) 4 SCC 39] this Court was dealing with the case of medical negligence and held that in cases of gross medical negligence the principle of res ipsa loquitur can be applied. In para 10, this Court gave certain illustrations on medical negligence where the principle of res ipsa loquitur can be applied.
47. In Postgraduate Institute of Medical Education and Research v. Jaspal Singh [(2009) 7 SCC 330] also the Court held that mismatch in transfusion of blood resulting in the death of the patient after 40 days, is a case of medical negligence. Though the learned Judges have not used the expression res ipsa loquitur but a case of mismatch blood transfusion is one of the illustrations given in various textbooks on medical negligence to indicate the application of res ipsa loquitur.
48. In the treatise on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. The principle has been explained in Scott v. London & St. Katherine Docks Co. [(1865) 3 H&C 596] by Erle, C.J. in the following manner: (All ER p.248 C-D) ... where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
49. The learned author at p.314, para 3-146 of the book, Medical Negligence gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below: Where a patient sustained a burn from a high frequency electrical current used for electric coagulation of the blood (see Clarke v. Warboys The Times, 18-3-1952);
Where gangrene developed in the claimant s arm following an intramuscular injection (see Cavan v. Wilcox [(1973) 44 DLR 3d 42]);
When a patient underwent a radical mastoidectomy and suffered partial facial paralysis (see Eady v. Tenderenda [(1975) 2 SCR 599);
Where the defendant failed to diagnose a known complication of surgery on the patient s hand for Paget s disease [see Rietz v. Bruser (No. 2) [(1979) 1 WWR 31];
Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin (see Bull v. Devon Area Health Authority [(1993) 4 Med LR 117],at p.131); Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes (see Coyne v. Wigan Health Authority [(1991) 2 Med LR 301]; Where, following a routine appendicectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma (see Lindsay v. Mid-Western Health Board [(1993) 2 LR 147], at p.181);
When a needle broke in the patient s buttock while he was being given an injection (see Brazier v. Ministry of Defence [(1965) 1 Lloyd Rep 26] at p.30);
Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient [see Roe v. Minister of Health [(1954) 2 QB 66]. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority (Teaching) [(1982) 1 All ER 650]]; Where an infection following surgery in a well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury (see Hajgato v. London Health Assn. [(1982) 36 OR 2d 669], at p.682); and
Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap (Crits v. Sylvester [(1956) 1 DLR 2d 502]).
50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence."
25.The Honourable Apex Court in MALAY KUMAR GANGULY vs. SUKUMAR MUKHERJEE[2010 AIR SCW 769] considering the said principle has held as follows:
124.In B.Nagabhushanam v. State of Karnataka, [(2008) 5 SCC 730] : (2008 AIR SCW 3573) (Para 9), this Court held as under:-
"12.Reliance placed by Mr.Kulkarni on Syad Akbar v. State of Karnataka (AIR 1979 SC 1948) (Para 30) is not apposite. It proceeded on the basis that res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar this court opined (SCC p.41, para 30): "30.Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonable raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt."
125.There cannot, however, be any doubt whatsoever that in the civil appeal the said principle is applicable. It has clearly been held by this Court that the onus of proof would shift on the respondents.
126.In Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and others, [2009 (7) SCALE 407] : (2009 AIR SCW 3563) this Court held as under:-
"32.We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. In Savita Garg (Smt.) v. Director, National Heart Institute (2004 AIR SCW 5020) (Para 16) it has been observed as under: Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people except better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."
26.In MARTIN F. D'SOUZA vs. MOHD. ISHFAQ [2009 (2) CTC 252], the Honourable Apex Court quoted with approval of the earlier judgment rendered by it which involves more or less an identical situation as in the present case on hand and the passage is extracted herein: "41. ..... For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others v. State of Maharashtra & others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade."
27.Therefore, considering the ratio laid down by the above said pronouncements of the Honourable Apex Court, we do not have any hesitation in holding that the defendants have not established the fact that there is no medical negligence. On the contrary, the plaintiffs have fully established the fact particularly with the evidence of P.W.3 read with Ex.P.6 that the negligent has been caused by the defendants while performing the surgery on the second plaintiff. The learned single Judge estimated the compensation for Pain and Suffering at Rs.2,00,000/- and for Mental Agony at Rs.1,00,000/-. Medical Expenses was rounded off to Rs.25,000/- and Travel and Lodging at Chennai at Rs.10,000/- in all Rs.3,35,000/-. The quantum of compensation and Medical Expenses awarded is quite reasonable. Hence, we do not find any reason to interfere with the judgment and decree rendered by the learned single Judge.
28.Accordingly, the Appeal is dismissed. However, considering the facts and circumstances of the case, there is no order as to costs